Mobley v. United States

• Decision Date: 28 June 1967
• Docket Number: No. 23380.,23380.
• Parties: Leroy MOBLEY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

379 F.2d 768 (1967)

Leroy MOBLEY, Appellant, v. UNITED STATES of America, Appellee.

No. 23380.

United States Court of Appeals Fifth Circuit.

June 28, 1967.

Thomas M. Jackson, Macon, Ga., C. B. King, Albany, Ga., for appellant.

Floyd M. Buford, U. S. Atty., Walker P. Johnson, Jr., Asst. U. S. Atty., Macon, Ga., for appellee.

Before BROWN, GOLDBERG and AINSWORTH, Circuit Judges.

AINSWORTH, Circuit Judge:

Appellant, Leroy Mobley, a Negro, was indicted, tried and convicted of robbery, theft, assault and murder in violation of 18 U.S.C. § 2113. On March 8, 1965, at about 10:00 p. m., two Negro males kidnapped Thomas E. Woodruff, president of the Exchange Bank of Unadilla, Georgia, at gunpoint, from the driveway of his home. They drove him to the bank, ordering him to open the vault, from which they robbed the bank of $3,778. When they ordered Mr. Woodruff to open the inner portion of the vault, he told them that he could not do so because the time lock would not open until the next morning, whereupon he was severely beaten and finally shot by the robbers, resulting in his death three days later.

Appellant and one Andrew Oliver were charged with the crime and Oliver entered a plea of guilty but has not yet been sentenced. Oliver testified at the trial, admitting his participation in the crime and implicating appellant as his partner in the offense as the one who beat and shot Mr. Woodruff. The jury directed imposition of the death sentence, which was accordingly imposed by the court. Prior to the trial, appellant moved to dismiss the indictment and to challenge the array of the petit jury on the ground that Negroes were systematically excluded from serving as jurors, by reason of their race or color, in the Columbus Division from which the grand jury was drawn that indicted him, and in the Americus Division from which the petit jury was drawn.

In aid of his motion to dismiss, appellant's counsel requested that the court permit him to inspect the written questionnaires, kept by the clerk of court, to determine the race of jurors on the jury lists of the Columbus Division from which the grand jury was drawn that indicted him and the Americus Division from which the array of the petit jury for his case was drawn. In his motion appellant alleged that because of his poverty he was unable to hire investigators to determine the race of those persons on the Columbus and Americus jury lists, and that the information contained in the questionnaires was pertinent to the issue of systematic racial exclusion and should be provided to him. The request to examine the questionnaires was denied by the district judge who stated later in written reasons that many of the questionnaires did not show the race of the jurors; that the answers given by the jurors were confidential; and that they were not necessary or appropriate to this inquiry since the court was satisfied from other evidence submitted by the testimony of the official jury selectors, jury commissioner, clerk of court and deputy clerks, that the grand jury and petit jury were fairly constituted. The court said that for a number of years names of Negroes have appeared on grand and petit jury lists of the Columbus and Americus Divisions.

The question for decision is whether the district court erred in refusing to allow appellant's counsel to examine the questionnaires of jurors on the Columbus and Americus lists and whether the district judge erred in denying the motions to dismiss the indictment and to challenge the array of the petit jurors.

In connection with the motions the court held a hearing and found that there were 4 Negroes on the 23-member grand jury (17% of the jury) which indicted appellant; on the petit jury panel of 100 names upon which appellant was tried, there were 15 Negroes; and the petit jury which tried appellant, consisting of 12 regular jurors and 2 alternates, contained 1 Negro as a regular juror and 1 Negro as an alternate.

The court also found: "That according to the 1960 census the total adult white population in the Columbus Division is 88,780, and the total adult Negro population is 38,129, and that 60.2% of the white adult population have at least an elementary school education and 31.4% of the Negro adult population have at least an elementary school education.

"That in applying these percentages 53,445 white persons and 11,971 Negroes would be presumed to be qualified for jury duty, which would mean that approximately 82% of those available for jury duty in the Columbus Division would be white persons and approximately 18% of those available would be Negroes.

* * * * * *

"That according to the most recent United States census the adult white population in the counties comprising the Americus Division was 34,321 and the adult Negro population was 26,299, and that among the adult white population in the division 58.7% have at least an elementary school education and 20.0% of the Negro adult population have at least an elementary school education.

"That in applying these percentages 20,146 white persons and 5,259 Negroes would be presumed to be qualified for jury duty, which would mean that of the jury pool so available slightly more than 20% would be members of the Negro race and slightly less than 80% would be members of the white race."

There is no finding, however, on the important question of the percentage of white and Negro jurors on the Columbus and Americus lists, there being no evidence on which to predicate such a finding.

In his written reasons the trial judge described the method of selection of jurors for the Columbus and Americus Divisions by the jury commissioner of the district aided by the clerk and deputy clerk of court. The last revision of the jury lists was completed in 1959 when, by use of the familiar "key man" system, the 1953 list was supplemented and revised by the clerk of court and his deputy who personally and by letter contacted church groups, educators, lawyers, other professional people, clerks of courts, civic clubs, women's organizations, law enforcement officials and any other source deemed likely to provide names of qualified persons. The compilers thus believed that they were acting in good faith and were obtaining a representative cross section of citizens of the community for jury service.

Thus the district court held that appellant's allegations of systematic exclusion of jurors because of race were unsupported and inaccurate.

Appellant contends that he has been deprived of his Fifth Amendment rights of due process and equal protection of the laws by being denied access to the jury questionnaires where he would have secured readily available information on which to determine the race of members of the grand jury and petit jury venires.

It is well settled that Negroes may not be systematically and arbitrarily excluded from the jury venires from which the grand jury is selected which has indicted a Negro defendant and that a conviction cannot stand if the petit jury is drawn from a list similarly composed. In the recent case of Whitus v. State of Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967), decided January 23, 1967, the Supreme Court said that "For over four score years it has been federal statutory law, 18 Stat. 336, 8 U.S.C. § 44 (1875); 18 U.S.C. § 243 (1948), and the law of this Court as applied to the States through the Equal Protection Clause of the Fourteenth Amendment, that a conviction cannot stand if it is based on an indictment of a grand jury or the verdict of a petit jury from which Negroes were excluded by reason of their race. Strauder v. State of West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880); see also Pierre v. State of Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757 (1939)."

In Cobb v. Balkcom, 5 Cir., 1964, 339 F.2d 95, this Court held "that a Negro defendant in a criminal case is entitled to indictment by a grand jury and trial before a traverse jury from which Negroes have not been arbitrarily and systematically excluded. A conviction cannot stand where such is established for it constitutes a denial of due process and of the equal protection of the laws."

The burden of proof is on the person attacking selection procedure to show "the existence of purposeful discrimination" by the exclusion of Negroes on account of race from jury participation. Whitus v. State of Georgia, supra; Fay v. People of State of New York, 332 U.S. 261, 285, 67 S.Ct. 1613, 1626, 91 L.Ed. 2043 (1947). Purposeful discrimination may not be assumed or merely asserted, it must be proven. Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). "When Negro representation on venire lists is not extremely disproportionate to the Negro population in the parish county, the burden may be a heavy one." Labat v. Bennett, 5 Cir., 1966, 365 F.2d 698, 712. However, juries must be drawn from a fair cross section of the community. Smith v. State of Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Glasser v. United States, 315 U. S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Thiel v. Southern Pac. Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946); Scott v. Walker, 5 Cir., 1966, 358 F.2d 561, 564. The jury must, therefore, be "drawn from a pool of persons broadly representative of the community", Rabinowitz v. United States, 5 Cir., 1966, 366 F.2d 34, 45, for "It is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community." Smith v. State of Texas, supra.¹

In compiling jury lists, both the need for competency and for a fair cross section of the community are important elements but the desire for competency must not be pursued to the extent that it prevents a fair cross section and any attempt to gain competent jurors that would result in a less representative cross section than one drawn from the statutorily qualified pool would destroy the right to serve on juries...